let me finish tonight with a thought on our challenge to the republican party. his name is limbaugh. but let's call him boss tube. you know, like boss tweed, the old political ringleader. here's the challenge we issued two days ago. it goes to any republican member of congress or senator. stand up and disagree with rush limbaugh. on anything. we began this campaign after witnessing this long debacle of republican after republican allowing this radio jock to come in not just the airwaves but the hearts and minds of a once

self-directed political party. congressman phil gingrey almost made himself famous by challenging limbaugh a while back but then supinely laid down before the forces of el rushbo and apologized. i guess he got the word from central command, nobody fights with rush limbaugh. i think our new nbc poll explains all this. it shows that a majority of americans call themselves conservatives but only about a third call themselves republican. which means that the right calls the tune. the guys in the suits up on capitol hill do the dance. at least enough to keep their jobs. now we're watching all this. bob bennic i called out a line last weekend. tray grayson comes next tuesday. charlie crist with the party yesterday flying as a man without a party. arlen specter hit the lifeboat a year ago. maybe hushbo is the boss. like the old city boss that used to control the woords, pick the polz, and run the show. was dick daley the all-time boss here in chicago ever as powerful in his party as boss tube is over his? daley only had a city. this guy's got a country. mr. and mrs. north america, all

the ships at sea, now hear this, nobody talks like the rush and dares call himself a republican. but there's still hope. there's still tomorrow. and "hardball" will be listening, ready and eager to let any republican senator or congressperson come here and show your guts, that you're still with the party of lincoln, not limbaugh. that's "hardball" for now. thanks for being with us. right now it's time for "the ed show" with ed schultz. good evening, and welcome to "the ed show." i'm lawrence o'donnell, in for ed schultz. here are the stories we'll be hitting tonight. bp's ceo says his company could have had a better emergency plan, he admits there were missteps in their response. congressman ed markey tells us what's been uncovered so far in the investigation. i have a suggestion for liberals concerned about elena kagan. trust president obama's judgment on this one. and arlen specter and joe

cess tak are running neck and neck in the pennsylvania primary, but which one can beat republican pat toomey in november? a new poll could sway undecided democrats. but we start with the oil disaster in the gulf. bp ceo tony heyward admits his company could have done better. he concedes there were missteps. 11 people are dead. there are over 4 million gallons of oil floating in the gulf of mexico. missteps is not the word for that. how about negligence? how about criminal negligence? or maybe manslaughter. just how reckless was bp and its subcontractors? it now appears bp and transocean ignored many opportunities to avoid this disaster. that was the focus of an explosive investigative house hearing yesterday. >> this catastrophe appears to have been caused by a calamitous

series of equipment and operational failures if the largest oil and oil service companies in the world had been more careful, 11 lives might have been saved and our coastlines protected. >> what specific equipment and operational failures did investigators find? there were four known problems with the blowout preventer, which was supposed to be the fail-safe to cut off the flow of oil and gas. part of the prevention process is literally to cut the cord with the drill pipe. but the shears were only strong enough to cut through the pipe, not the joints that connect to the pieces of the pipe together. >> the threaded joints between the sections of drillpipe make up about 10% of the length of pipe. if the shear rams cannot cut through the joints, that would mean the so-called fail-safe device would succeed in cutting the drillpipe only 90% of the time. >> but even if the shears didn't

work, there was a backup plan, a fail-safe to the fail-safe, a so-called dead man's switch. the dead man's switch also failed. why? because someone didn't change the battery. so to recap, the growing list of problems with the deep water horizon oil rig owned by bp, dead battery, bad wiring, leak in the so-called blowout preventer. but perhaps the most damning evidence to come out was this -- when transocean bought that blowout preventer, which was supposed to prevent the catastrophic spill that we've seen, they were told, they knew that there were 260 possible risks for failure. >> how can a device that has 260 failure modes be considered fail-safe? >> that is the question of the

day. if only someone at transocean had dared to ask that question in 2001, when they knowingly bought faulty safety equipment. joining us now to tell us -- no, we're going to do something else before we get to our guests. tell me what you think in our telephone survey. the number to dial is 877-ed-msnbc. the question tonight is do you believe bp knew disaster was coming? press 1 for yes. press 2 for no. i'll bring you the results later in the show. and now joining us is massachusetts congressman ed markey, chairman of the house select committee on energy independence and global warming. congressman markey, what have we learned so far in this investigation, and what legal terms should we be applying to what we've discovered? >> well, what we have learned is that bp certified, promised that

they had the capability to deal with any accident, although they did believe that no accident would ever occur. in fact, last summer they certified that they would be able to handle an accident in the gulf of mexico that was 50 times larger, that is, 250,000 barrels a day as opposed to 5,000 barrels a day as an accident. well, it's very clear that, one, they weren't ready to deal with an accident that's 1/50 the size of the one they certified that they could. and two, that they had promised the federal government, and i think in a way perhaps even deluded themselves by short-changing all of the investment in the safety procedures that should have been put in place and by engaging in such boosterism, their boosterism led to complacency and the complacency led to a disaster. and that disaster is something that right now is still out of

control without any real guarantee that bp has a plan to be able to stop it. >> now, we're showing pictures of the oil floating on the gulf. that's the coverage that we're seeing these days. we don't have the 11 bodies lined up that were lost when this thing exploded. what do we have in this case, congressman markey? is the negligence that we're finding in this case something that rises to the level of possible manslaughter charges? how far does this go? >> i believe that we are going to be engaging in a csi gulf of mexico for months. identifying all of the evidence. finding out who knew what when. right now we have at the witness table finger pointing coming from each direction of each one of those four companies all

trying to shed any type of responsibility for this catastrophe. but at the end of the day lives were lost. livelihoods have been destroyed. and there is going to have to be a day of reckoning. your father was one of the great trial lawyers in massachusetts history. so whether or not this is manslaughter or criminal negligence or some other charge, it will be without question something that is going to call for the strongest possible penalties that are imposed, although at this point the evidence still is not complete so that we can know who exactly to blame for this catastrophe as the ultimate responsible party. but it looks like many of these companies should have known or should have had enough of a warning that they raised the red flag that everyone stepped back and said this could be a disaster. >> ed, as you know, i don't have

my father to ask these legal questions of anymore. so i apologize for making you the lawyer of the day here. but going forward as a legislator, where are we going on offshore oil drilling? where are we going on regulation, safety regulation? what do we have to do from here? >> i think that we are going to need to have the same kind of panel like the kemeney commission that president carter impaneled after three mile island to come forward with a series of recommendations that have to be implemented as the precondition to any new leases being granted off the coastlines of our country. and anyone that thinks that we're just going to move forward with business as usual is just missing the historic nature of what has just happened. obviously, there was not proper safety precautions put in place. obviously, the government and the private sector let down the american people and especially

those people in the gulf of mexico. people expected the apollo project. instead, they're getting project runway in terms of nylons and hair that is going to be used to clean up that spill down there. this is all unacceptable. we need a moratorium. put the safety precautions in place. then begin to talk about leasing once again. >> massachusetts congressman ed markey, thank you very much for joining us on this important subject tonight. >> thank you. >> now, experts say the justice department is likely to file criminal charges in this oil disaster that could result in financial penalties way beyond the civil liability cap. one of the major factors in deciding whether to file charges is past behavior. according to a mcclatchey report today, federal prosecutors also look at the history of violations, which could also persuade them to file charges. bp, for example, has already agreed to pay millions in

criminal penalties for several major incidents, including for a fatal explosion at a texas refinery in march 2005. attorney brent koons successfully sued bp after that foov explosion in texas, and he is also involved in current lawsuits against the company. what do you see here legally? what are the right words here? they're saying that they made some mistakes, just a few little screw-ups here and there. do we have criminal liability? do we have civil negligence? criminal negligence? what is this? guide us through this. >> well, we don't know yet because we obviously don't have all the facts. but from what we've heard in the senate and the house meetings today, what we know from the press, what we know from our own investigations, we know there was certainly civil negligence. in the texas city case we had previously we also know there was criminal negligence. in fact, we've worked directly with the department of justice

to help prosecute bp criminally in that case. >> now, how long do you think it's going to take for this to play out? for example, the word that we get today that there's a possible criminal investigation going on, given the scope of evidence, the difficulty of obtaining it, what kind of timetable do you see here for the justice department? >> well, the department of justice works relatively slow, frankly. it took about two years and a lot of prodding from us as counsel in that case to effectuate a criminal plea in the underlying case. and that also involved bp and their history with the propane price fixing and also involved criminal charges that were pled out as a package on the alaska pipeline. so bp has a long history of having to deal with the department of justice in a criminal setting. i think what you said earlier and what the congressman said, which is an important word, which is criminal negligence being manslaughter. what we've seen in these plea agreements to date has always been a fine. these guys keep making horrible

blunders. they cut costs, cut budgets, and then we have these disasters on our hands over and over and over again with bp. and every time they just have to pay a fine. and at some point there needs to be corporate accountability where people have to actually face -- i say people. the executives that make these decisions. that they have to face a jury on an indictment. >> well, i raised that term "manslaughter" because no matter how much tape they run here of the oil floating over the surface of the gulf, there's 11 people who loved their lives instantaneously in this. and that's where this story i think begins. and those 11 cases need to be dealt with legally. and that's why i raise the question of manslaughter. could you accumulate enough evidence of negligence that it rises to what could be interpreted as a willfully reckless level that would get you to a manslaughter case here? >> certainly from what we've seen to date it already invites enough to take it to a grand jury. i think at this point a grand jury should be convened and then

they can prepare the documents as they arise, give those to the grand jury over time, let them make that decision. but from what we've seen it at least calls for the grand jury at this point to at least start looking for the information as it develops. and from what i've seen so far i think it's already there p again, what we saw in the bp care, all of the same things bp did in this case, they did many times over in the texas city explosion, and even though we and the victims asked over and over to see some kind of criminal indictment against individuals in executive positions that were the ones that made these decisions that resulted in all these lost lives -- we lost 15 people in that refinery, just like we lost 11 rig workers. and again, there just was no pressure on these individuals. if you don't have pressure on these individuals, they're not going to change their ways. that they can always buy their way out by just doing a fine. that's what they'll do. it's like drunk drivers. if drunk drivers keep driving drunk and all they have to do is pay a fine, every time they get caught it doesn't change their ways. >> brent coon, thanks for your legal insight on this case

today. >> yes, sir. coming up, president obama on the jobs offensive in buffalo today. he slams republican naysayers for standing on the sidelines. more on that. plus, more americans support arizona's national immigration law. and the birthers can stop bothering the people in hawaii. you're watching "the ed show" on msnbc. first they drive it in the real world. and put it through its paces. they rate its fit and finish. and the amenities inside. they factor in purchase price and operating costs, fuel economy and resale value. in short, they do what you do to test its quality. the consumers digest best buys from chevy. put them to your own test. and may the best car win. tdd# 1-800-345-2550 to help with my investments. tdd# 1-800-345-2550 if i could change one thing...

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breaking our economic freefall was job number one when i took office. despite all the naysayers who were predicting failure a year ago our economy's growing again. i ran for president to keep the american dream alive in our time. for our kids and our grandkids and the next generation. so we met our responsibilities. we did what the moment required. >> president obama was on offense in buffalo this morning, touting his administration's success on the job creation. he also took a shot at republicans. >> frankly, i had one side of the aisle just sit on the sidelines as the crisis unfolded. and if we had -- if we had taken that position, just thinking about what was good for my

politics, millions more americans would have lost their jobs and their businesses and their homes. >> but the president had his work cut out for him convincing locals that the economy is actually turning around. a group of unemployed buffalo residents put up a billboard in advance of obama's arrival. it reads simply, "dear mr. president, i need a freakin job, period." obama addressed the concerns of those who are still feeling the effects of the recession. >> if you're still looking for a job out there, it's still a recession. if you can't pay your bills or your mortgage, it's still a recession. no matter what the economists say, it's not a real recovery until people feel it in their own lives. until americans who want work can find it, and until families can afford to pay their bills and send their kids to college. so that's what we're working for. that's our goal. >> for more let's bring in sam

stein, political reporter for the huffington post. sam, first of all, the question at the white house today has to be whose idea was buffalo? i mean, tough crowd, buffalo. >> you don't like buffalo? >> very tough crowd. you know, they're going to put up signs that are going to be very uncomfortable for the president. >> they're a sporty town. i think they went for the wings. that's where the president got -- did a stop, had some buffalo wings. probably that was why they did it. >> but upstate new york is always tough on jobs issues because it's not an easy place -- >> it's a place where unemployment is really high. and you know, this is probably the toughest task that the president has. i remember being in a briefing with stan greenberg, the from nent democratic pollster, who talked about what bill clinton had to do in a similar slirk circumstance, and he said the toughest task for a president is talking about an economy improving. because a lot of people don't think it's improving like obama said by looking at their wallets. 40% of everyone unemployed right now has been unemployed for longer than six months. that's 6.7 million people, the largest amount ever in history. that's a huge a people who've just been out there waiting or

looking for work. and for the president to get up and say listen, the time is coming, we're improving, it's tough to sell to them because they've been out of work for so long. so it really is a tough task. he's trying to get it through the needle. but we'll see. >> and we've got an nbc news/"wall street journal" poll on the government's highest priority. and the poll comes up with 35% saying that jobs and the economy are the highest priority. 20% saying deficit spending is the highest priority. national security/terrorism 12%. so they do seem to be getting through on jobs and the economy being at least a high priority. >> well, that's the thing. and what's frustrating for progressives is there's this huge sort of impetus to address the deficit in government spending. that is the political cause celebre. you see it actually in england but you see it domestically as well. and that sort of contrasts to the idea that you need to actually continue to stimulate the economy, which of course requires spending money. so there's these two planks here. the president has said he wants to cap discretionary spending starting next year. a lot of people say why are you

doing that when you're just trying to get out of the recession, what you need to do now is actually continue to spend money. and here you have the contrast between politics and sound policy. and so we'll see how the white house can actually do this. >> now, where does the president go from here? they've pivoted clearly off of health care. they got the bill signed. there was that cloud over their effort to address the economy. they do seem to have a clear shot at addressing the economy now. they do seem to have pushed up their numbers a little bit in terms of the public's belief that they're addressing it. but what moves do they have -- >> that's the thing. >> -- to make between now and october? what's left? >> when they were doing the stimulus package the big complaint was you're going to have one shot, you might as well take it all, because you can't go back to congress and say i want another $100 billion. it's just not going to happen. they do have a jobs bill that's coming out. it's going to be fairly watered down. and we'll see if they can get it done before recess. but the other thing is they need events to not conspire against them. this president has wanted to talk about jobs forever, and then all of a sudden someone tries to blow a car bomb up in

times square or an oil spill off of the gulf coast happens, and suddenly he's being drawn into other issues. this white house desperately wants to just talk about jobs between now and november, tout the successes of the stimulus, stick it to republicans for opposing it, and make that the narrative. the problem is can they do it in this crazy media environment where it seems like one disaster's happening after the next? >> well, even if they did have the clear field, though, what is the republican argument against the president? people pretend that the president gets up there and talks without objection. when he finishes his talking points on jobs, what's the republican counter? >> the thing is the republican argument is getting softer and softer because when you saw in april was there's 444,000 new jobs. it's tough to say where are the jobs when the data's there. >> we're going to break it there. coming up, the liberals want to know, is elena kagan liberal enough? the answer is it comes down to trusting the president. that's next. there's a new 24-hour heartburn formula. it's called zegerid otc. it's been shown in a clinical study to provide acid control that's greater and faster than prevacid.

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welcome back. supreme court nominee elena kagan today continued to make the traditional rounds of courtesy calls on senators who will decide her fate while some liberals continue to worry that she might not be liberal enough to replace john paul stevens, the liberal anchor of the court. we don't know. we can't know how a supreme court nominee will vote after she joins the court. look at who elena kagan will be replacing. justice stevens, a republican, was appointed to the federal bench by richard nixon.

republican president gerald ford put stevens on the supreme court in 1975. stevens passed two rounds of vetting in the nixon and ford administrations, vetting designed to reassure those presidents that he would be a reliable conservative on the court. no one would have dreamed in 1975 that stevens would become the most liberal member of a court that now includes justices chosen by bill clinton and barack obama. here is what stevens had to say in a 2007 interview about his liberalism. "i don't think of myself as a liberal at all. i think as part of my general politics, i'm pretty darn conservative." imagine if elena kagan had ever been caught saying those same words. liberals would be in a panic about her today. elena kagan has obviously lived

her entire professional life for this moment. she has carefully avoided controversy. unlike the justice she clerked for, thurgood marshall, who as a lawyer bravely threw himself into the center of the most controversial cases of his era. marshall risked his life trying cases in southern towns where he was not allowed to sleep in hotels and where he knew he was not safe. elena kagan is no thurgood marshall. no one on the supreme court is. the weight of the court now is to avoid controversy. so we don't know a lot about kagan. but we do know a lot about the man who appointed her. barack obama is the wisest and most learned legal scholar ever to occupy the white house. that's who kagan would have had to fool if she really were some sort of stealth conservative.

elena kagan is very smart. but not that smart. i don't think she fooled barack obama. coming up -- joe sestak has surged past arlen specter just days before the pennsylvania primary, but the pennsylvania democratic machine is trying to stop him in his tracks. that's next. host: does elmer fudd have trouble with the letter r? elmer: shhhh, be very quiet; i'm hunting wabbits. director (o/c): ok cut!!!! uh...it's i'm hunting "rabbits," elmer. let's try that again. elmer: shhhh, i'm hunting wabbits. director (o/c): cuuuuut! rabbits. elmer: wabbits director (o/c): rabbits. elmer: wabbits. director (o/c): rabbits with an "r." elmer: aw...this diwector's starting to wub me the wong way. vo: geico. 15 minutes could save you 15% or more.

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welcome back to "the ed show." i'm lawrence o'donnell in for ed schultz. we're less than a week away from the democratic senate primary in pennsylvania, and it is going down to the wire. the one-time long shot, congressman joe sestak, has surged in the polls recently against incumbent senator arlen specter. the two are now running neck and neck. and sestak is not letting up. putting this new ad out today. >> the race between sestak and specter is a dead heat. so compare the records. on supporting pennsylvania

seniors sestak scores better. on standing up for civil rights, sestak. protecting the environment, sestak's record is twice as good as specter's. issues important to women, sestak's record is better. the best democrat for pennsylvania's future, joe sestak. >> meanwhile, a new quinnipiac poll shows sestak holding his own in the general election as well. he trails republican front-runner pat toomey by only two points, 42% to 40%, while toomey leads senator spectacularer by seven points, 47 to 40. for more on what to expect on the pennsylvania primary next tuesday, let's bring in the world's greatest expert on these subjects, chuck todd, nbc's chief white house correspondent, and co-host of msnbc's "the daily rundown." chuck, what the chuck is going on in pennsylvania? how does the white house feel about that specter endorsement? >> well, what's interesting about it, i think that you talked to them and you talk to them behind the scenes and they say, well, what else were we

supposed to do? he gave us the 60th vote in the u.s. senate at the time. of course we were going to endorse him. of course we were going to help him. but notice what they're doing this week. it's a hands-off policy. why? because i think we're finding out, you know, sometimes things aren't complicated. democratic primary voters are very loyal democrats. that's why they show up and actually vote in primaries. we know not the whole -- the entire democratic party doesn't show up and vote in primaries. the ones who do are pretty loyal democrats. well, in pennsylvania i bet you most of those folks have never pulled the lever for arlen specter. maybe casual democrats have in general elections, but not ones that actually show up in primaries. and i think this is just a simple case of once joe sestak reminded democratic primary voters that arlen specter was a republican for 30 years that that's when the numbers started to move. and i think the reason you're seeing this angst among the pennsylvania democratic sort of establishment is, you know, sestak has not played ball with

them. he didn't play ball when he was running for congress. and you know, they're not going to have a seat at his table if he's the nominee. and i think that concerns some of them a little bit. >> when you see that poll, chuck, with sestak running better against the republican than specter does, is the white house secretly rooting for sestak here if they really want to hold on to that seat in november? >> can i tell you that i've -- basically, i've unofficially surveyed i think some of the smarter folks around here, and they're pretty split. you know, some of them will make the case that specter's the better nominee. some will make the case that they see oh, okay, maybe sestak. you talk to other democratic operatives around here, and it is split, although you're starting to see them come around on sestak. they say, well, in this year, in this anti-incumbent environment having less of a track record in the u.s. senate might be a better thing. i can tell you this. there are a lot of republicans around town who realize they've got to run a different type of race. it was an easy campaign that toomey was going to run against specter. didn't mean he was going to win,

but he knew how he was going to run against specter. it's a different race if sestak's the nominee. >> chuck todd, thanks very much for joining us on this one. >> you got it, buddy. now let's turn to democratic congressman chaka fatah of pennsylvania. congressman fatah, you endorsed arlen specter in this race. having any second thoughts as you watch joe sestak surge? >> well, i know that in the poll you that mentioned, the quinnipiac poll, specter's ahead actually in terms of the election next tuesday. and i didn't want to leave that out of the discussion. i know chuck has already written the specter obituary. the white house -- >> well, chuck hasn't written it, but some of us here are starting to write it. >> that's fine. but that's why we actually -- that's why we actually play the game. you know, the flyers tied the series. and you know, it's just like a hockey game or any other kind of game. you actually have to play it. and it's going to be played on tuesday, not today. and i think that specter's going to win this race. and much like "the new york times" said when he switched parties-o no matter what party he's in if you look at what he's

done on health care alone he should be re-elected to the u.s. senate. but that whole speech on the front end, the president talking about this economic recovery would not be possible without senator specter's vote on the stimulus. and i know that somebody wants to suggest that somehow people are moving away or the white house is silent. there's an obama for specter commercial running almost every second in the pennsylvania media market, where the president says that he loves the democratic party, he loves arlen specter. and that 60th vote is important. and governor rendell's working hard. we're all working hard. and anyone who is counting senator specter out has no knowledge of his electoral history. he's always been in tough battles. they've always been close. and he's always won. >> now, in an anti-incumbent year might it have been better for the governor and for you and for all these incumbent officeholders in the democratic party in pennsylvania simply to hang back and not do an endorsement in this race? might it be that the weight of

all those endorsements from the incumbents in an anti-incumbent year is actually hurting specter up there? >> well, look, there's a lot of smart people in this world. i can just tell you this. my judgment of what's going it happen with incumbents is what always happens, most of them are going to get re-elected. you can talk about an anti-incumbent year. most incumbents are going to get re-elected. there are going to be some tough races with tough circumstances, but the reality is the governor of our state, the mayor of philadelphia, the major newspapers in our state, the "philadelphia inquirer" and others have looked to both of these candidates and have said that arlen specter is the best person to represent our state. and i think that's going to have meaning. and we're not running away from the fact that these are people who actually have helped pennsylvanians, who focused on these issues, who know these candidates, and they've chosen arlen specter. i think that's a plus in his column. and we'll see how the voters think on tuesday. >> congressman fattah, thanks for answering our questions. and good luck in dealing with

joe sestak if he wins. >> i know him well and we want him to win that seat in congress so we can hold on to our majority if he decides to run for senate. >> thanks, congressman. >> thank you. >> now let's get some rapid-fire response from our panel on these stories. president obama is in manhattan right now to thank local authorities who responded to the bomb in times square. it comes as the homeland security department is under fire for cutting security funds for new york city. the nbc news poll shows americans support arizona's controversial anti-immigration law. and hawaii has said it has had it with the birthers. the state adopted a law that allows them to legally ignore requests for the president's birth certificate. with us tonight former cia officer jack rice and the hill's a.b. stoddard. a.b., let's go backwards from hawaii to the -- they don't have to -- if you want a copy of the president's birth certificate, there's now a law in hawaii that you can be ignored. is that a victory for reason or

is the government being a little too harsh on this one? >> well, i imagine it must be temporary, right? when president obama's no longer in the white house, they're going to have to rescind this, i would think. >> good question. >> in terms of open government, we're not trying to close up government, we're trying to open it. so it strikes me as something temporary. although you can imagine what drove them to this madness. i mean, that they're literally so inundated with requests they couldn't function. >> jack, reasonable choice for hawaii? >> i agree with a.b. actually on this. obviously, with transparency you want to be able to get what it is that you want. but i think their response was a reasonable one in that what they were getting was the same question over and over. sometimes from the very same people. and so as a result they needed to do something responsible. for the fiscally responsible party you would imagine that republicans would say gosh, you know, what maybe we should stop asking the same question a bunch of different times. taxpayers are getting tired of it. >> yeah. let's take a look at the nbc news/"wall street journal" poll on support for the arizona immigration law. 64% support. 34% opposed. does that surprise you, a.b.?

>> i am surprised 49% of democrats would like it to pass in their own states. this is very popular. even though at the same time the most surprising figure is that 66% of those polled, matching the number who support it, think it will lead to discrimination against latinos who are in this country legally. i mean, this is -- they know that it will lead to discrimination and they still support it. we have a real immigration problem on our hands here, and that is why people want some action. >> jack, how do you read that poll? 64% supporting the arizona law. >> it's disturbing. let's go back to the civil rights movement. if we actually go to majority vote, all that would go down too. so my attitude is that it was wrong for people from a majority of people to think what they thought then. it's still wrong across the country now. it shows we have a long way to go. >> jack, let's stay on your expertise. homeland security department cutting spending for security funds in new york city in the wake of what's happened in times square. the timing's not so good on that one. >> you know, the president is having problems right now with the oil issue too, isn't he?

all of a sudden let's drill off the coast and then you get what's happening in the gulf. you're right. that's an issue. at the same time the white house is pushing back. if you take a look at the recovery and reinvestment act right now and add that money back in, there's actually an increase in the amount of money being spent in new york. it's about 24% more than what president bush was spending. but the bottom line really has to be not just what you spend but what you spend it on. i think that is critical. we look at the latest case and what happened with obviously the times square case and even with abdulmutallab. if we look at what has happened in the past, we're doing a lot of the right things. so i'm encouraged by that, and i think we all should be. >> new york delegation's up in arms about this. not surprisingly. but they make a case, especially in the wake of the times square -- >> yeah. bipartisan criticism from the new york delegation. look, as a native new yorker i'll tell you, we don't have time to delve into the details that jack just gave us about how actually the bottom line is. there's still the same amount of money. when they look at numbers, transit funding, they think the next attack is coming on the subways. transit funding from 150 million

down to 111. protection for the ports, 45 million down to 33. those numbers scare them. it's not good enough. and that's why you see democrats joining republicans saying -- >> go ahead. >> one last point here. the bottom line is what this all proves is that new york city is still the number one target in america for terrorist attacks. and so i think people really do hold on to that. and they think about that. and frankly they should. >> a.b.-n moments like this when it comes time for cost cutting, do they take -- do the democrats in the white house take new york for granted? they look at that state and think we're going to win that state, doesn't matter what we do? is that part of the calculation? >> i would imagine they would have to. it is not purple, it is not a problem. and that's just -- that's terrible political cynical reality, but i think you're right. even though it is the number one target. >> all right. we're going to break it right here. thanks, a.b. and jack. coming up, jonathan turley on elena kagan's hard to read record. that's next. this can only end one way. [ crunch ]

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welcome back. supreme court nominee elena kagan was back on the hill for a second day of meetings with senators. her visit was met with cursory praise from most democrats and predictable caution from most republicans. but the reactions from two senators are worth noting. the first is senator arlen specter, who voted against her for solicitor general when he was a republican. as we heard in the last block, he's now battling in a democratic primary in pennsylvania, and yet he still refused to commit to voting for her. and there was this striking comment from republican senator scott brown, the junior senator from massachusetts. brown says his meeting with

kagan convinced him she supports the military. even though she banned military recruiters from campus when she was dean of harvard law. >> it was a very good meeting. after we spoke about it at length that she is supportive of the men and women who are fighting to protect us and very supportive of the military as a whole. and i do not feel that her judicial philosophy will be hurting our men and women who are serving. >> the senate's newest republican may have just punctured a major gop attack line. for more let's bring in jonathan turley, a professor at george washington university school of law. professor turley, what do you make of the arlen specter predicament? here he as a republican just last year voted against the confirmation of elena kagan, and now he's running in this democratic primary next week, he can't even come out and say i support the democratic president's choice for the supreme court. >> well, i think that does create something of a quandary

for him. and i think you're going to see that across the board. you know, she was selected, like so many of our recent nominees, because she doesn't have much of a paper trail. she has not made many statements publicly. she is in fact an unknown. that was i think one of the great advantages that the white house sought. and it's going to be hard to punch those shadows. there's not much there to really get much traction on. >> jonathan, clearly the republicans were i think hoping to score some points on her attitude toward the military that she demonstrated when she was dean of harvard law school. tell us exactly what she did do and how you think scott brown's comments affect any strategy the republicans might have with that going forward. >> well, actually, harvard law school went back and forth in terms of allowing military on campus. and kagan was part of that effort. she allowed the military to work through an association of students for a while.

she found ways to accommodate them. then they were removed from campus. then harvard essentially backed down when federal funds were endangered. so it's a very mixed record. it's not a particularly compelling one to say oh, my lord, kagan must be anti-military. there's just no evidence of that whatsoever. >> and what do you make of scott brown's comments today? does that -- does that defuse what the republican strategy, or does it indicate that there may be some other republicans will be going in that direction? >> oh, i think they're still going to attack on this. the fact is that she did act to keep the military off campus for part of this period. i think that is enough traction for that issue. but it's not lethal. they still can't find something that's positively lethal in this record. there were a great number of deans in law schools that joined the effort with harvard. >> do you expect them to find anything in the white house, the clinton white house documents, memos of elena kagan's that can

be in some way useful in predictively evaluating how she would operate on the supreme court? >> well, those are always very dangerous for nominees because they are largely unguarded moments where you're sharing thoughts and many times you're putting ideas out there. you know, kagan is an academic, and academics are used to pushing the envelope and suggesting things that they might not ultimately support. and so that's what makes these so difficult. sam alito had a problem like that in the justice department when he seemed to -- well, he didn't seem to. he clearly opposed what became known as gardner versus tennessee. he seemed to suggest you could shoot unarmed fleeing suspects. but ultimately that didn't produce much of a problem for him in his nomination. >> okay. we're going to have to wrap up there. thank you, jonathan turley. we'll be back i'm sure for more updates on the supreme court story. thanks a lot. >> thanks, lawrence. and we've got a few stories to update here tonight. we're learning a little more about the so-called miracle boy tonight. doctors say the lone survivor of

that plane crash in libya is miraculously in good condition. the survivor is a 9-year-old dutch boy. he had surgery on his shattered legs and is expected to make a full recovery. the crash killed 103 people on board. and finally, ed is down in greenville, south carolina today. he played in the bmw pro-am with his professional golfer son dave. the schultz duo finished 5 under for the day and are still in the hunt to take it all. we'll give you an update tomorrow night on whether big eddie and his son dave made the cut. good luck, guys. coming up, republicans want to protect the second amendment rights of people on the terrorist watch list, and democrats are letting them get away with it. the american people want them to step up. that's next on "the ed show." ♪ we'll begin with a spin

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welcome back. in the face of loud opposition and passionate rallies from gun rights activists, democrats have shied away from addressing gun control head on, so much so that the brady campaign to prevent gun violence gave president obama an f for his lack of attention to the issue. joining me now for more on this is paul hempke, president of the brady campaign. paul, you have some new polling indicating that the public is opposed to what they're seeing now in these public rallies of people carrying weapons. >> quite clearly politicians shouldn't be afraid to talk about this issue. we asked people whether